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Texas Environmental Update: COVID-19 Note

The Texas Commission on Environmental Quality's Office of Compliance and Enforcement just this afternoon announced the establishment of an email box to accept requests for potential enforcement discretion in the instance that noncompliance is unavoidable directly due to impact from COVID-19.  Regulated entities should email both OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov with specific information related to enforcement discretion requests.  According to the announcement, the OCE (Office of Compliance and Enforcement) email box is monitored daily by multiple TCEQ staff who will ensure the requests are expeditiously addressed.  The TCEQ's goal is to provide a response to the regulated entity's request within 24 to 48 hours. The email to OCE should at a minimum include the following:

  • Concise statement supporting request for enforcement discretion

  • Anticipated duration of need for enforcement discretion

  • Citation of rule / permit provision for which enforcement discretion is requested

Regulated entities must maintain records adequate to document activities related to the noncompliance under enforcement discretion, including details of the regulated entity's best efforts to comply.

To date, the U.S. Environmental Protection Agency, Occupational Safety and Health Administration and the Pipeline and Hazardous Materials Safety Administration have released no public statements regarding any adjustments or flexibility on periodic environmental regulatory, permit, order, or decree requirements - inspections, training, testing, monitoring, reporting, etc. - that may become difficult as more employees work from home, as staffing is reduced to a skeleton crew, as companies implement social distancing measures for those who remain in the workplace, as consultants and other support face travel restrictions, and as supply chains for necessary tests, tools, and equipment face potential disruption.  Clients have been asking us about, for example, extensions for triennial RMP audits scheduled for the coming weeks and months.  While we would hope that the agencies would be understanding of delayed or omitted compliance activities during the present crisis (and so far, in our conversations with the agencies, we have found them to be open to reasonable extensions), there is currently no legal or policy assurance in place to that effect.

We would encourage our clients and friends in the environmental profession to be looking out to periodic compliance actions coming due in the March-April-May timeframe to ensure arrangements are in place to either complete those actions or to seek extensions or waivers from the relevant regulators.  Likewise, if you have compliance obligations under a consent decree or other settlement document that may not be met in a timely manner, we would encourage you to make an early assessment of the relevant force majeure provisions and the procedures that often must be initiated when the regulated entity first knew or should have known about the force majeure event.  Such a determination can be murky with a slow moving pandemic, as opposed to an incident at your facility. 

Please stay safe.

© 2020 Bracewell LLP

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About this Author

Tim Wilkins, environmental, natural resources, attorney, Bracewell law firm
Partner

Tim Wilkins is the head of Bracewell's firm-wide Environmental and Natural Resources practice group. Tim represents large companies that rely on him for strategic environmental permitting assistance, the defense of environmental enforcement actions, and assistance with the environmental aspects of major transactions. He is a nationally-recognized leader in environmental auditing, having overseen environmental compliance audits involving thousands of locations, handled hundreds of environmental audit disclosures, and pioneered the development and use of U.S. EPA's audit...

512-542-2134
Matt Paulson, Bracewell, Chemical Manufacturing Attorney, Environmental Issues Lawyer
Partner

Matt represents companies in the oil and gas, refining, power and chemical manufacturing industries on environmental matters, including strategic permitting, regulatory compliance, investigations, enforcement and civil and appellate litigation. His work includes advising clients on environmental issues arising under the Clean Air Act, the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, and other state and federal environmental laws.

Matt provides assistance on crisis management and prevention, including responding to major accidents, conducting internal investigations associated with allegations of criminal and civil wrongdoing, preparing risk management, emergency response and business continuity plans, and preparing for inspections by regulatory authorities.

512-494-3659
Sara M. Burgin, Bracewell, Environmental Compliance Lawyer, Water Quality Issues Attorney
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Sara provides counsel to clients on environmental issues, particularly on issues related to water. She advises on permitting, compliance and enforcement matters in association with onshore and offshore wastewater and storm water discharges; issues relating to surface water and ground water rights; water contracts; Spill Prevention Control and Countermeasures (SPCC) plan requirements and applicability issues; Clean Water Act (CWA) jurisdiction; issues associated with public water systems at industrial facilities; and dredge and fill permit requirements.

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Kevin D. Collins, Bracewell, Government Investigations Attorney, Chemicals Sector lawyer,
Partner

Kevin is a former Assistant U.S. Attorney from the Eastern District of Texas. He is a trial lawyer and has experience trying cases to jury verdict in state and federal court.

He also assists companies responding to government investigations after major industrial accidents and chemical releases in the energy and chemical sectors. Kevin has experience responding to investigations by the U.S. Environmental Protection Agency (EPA), the Chemical Safety Board (CSB), the Occupational Safety and Health Administration (OSHA), the Pipeline and Hazardous...

512-494-3640
Whit Swift, Bracewell Law Firm, Environmental Strategies Attorney
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Whit advises industrial companies on state and federal air quality permitting and regulations, such as Title V operating permit matters and state and federal new source review permitting. He represents clients in environmental litigation matters and has contested permit matters before the Texas State office of Administrative Hearings.

He has experience assisting major manufacturing, energy, chemical, and petrochemical companies to develop and implement state and federal preconstruction and operating strategies, and provided counsel on compliance...

512-494-3658